Zaman (Migration)

This matter concerned an application to review the cancellation of a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), held by the first applicant. The dispute centred on whether the grounds for cancellation were made out and, if so, whether the visa should be cancelled, considering the applicant's circumstances. The decision was made by a member of the Tribunal.

The Tribunal was required to determine if a prescribed ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) was established. Specifically, it needed to ascertain whether the nominated position associated with the subclass 457 visa was genuine, or if the applicant lacked a genuine intention to perform the nominated occupation at the time of the visa grant or had ceased to have such an intention. If the ground for cancellation was found to exist, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation was made out, as the nominated position was not genuine. The applicant had been granted the visa to work as a chef for an approved sponsor, but did not ultimately assume this role. The Tribunal noted that the applicant had not informed the Department of this fact, fearing the consequences, which meant the Department was not aware that the position was not genuine at an earlier stage. The Tribunal gave minimal weight to the applicant's claims regarding financial, family, and psychological circumstances, finding insufficient evidence of a need to remain in Australia beyond a desire to do so. Consequently, the Tribunal concluded that the discretion to cancel the visa should be exercised.

The Tribunal affirmed the decision to cancel the first applicant's subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to the second applicant.